The elaborate scheme described by the Justice Department and the Securities and Exchange Commission last week, which involved breaking into computer servers to obtain confidential information about impending corporate announcements, certainly looks like a classic case of insider trading. The defendants are accused of making millions of dollars in profits by using information to trade profitably.
But insider trading law as currently interpreted by the courts would not cover this case because the hackers are accused of being thieves, not insiders who breached a duty owed to the source of the information. Indeed, they are as far from a fiduciary as one could find — an important requirement for an insider trading violation. The question is whether trading on stolen information is also a type of securities fraud.
‘Enforcement 40’ for 2020
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